A&D Instruments Standard Terms and Conditions for the Supply of Goods and Services
- Interpretation
- The Contractual Basis
- Goods
- Supply of Services
- Retention of Title
- Delivery
- Risk
- Warranties
- Returns of Goods
- Pricing (Goods)
- Terms of Payment (Goods)
- Terms of Payment (Services)
- Customer’s Obligations (Services)
- Repairs
- Demonstration Equipment
- Liability
- Intellectual Property Rights
- Set Off
- Force Majeure Event
- Third Party Harassment and Abuse
20A. Termination
20B. Consequences of Termination - General
1. Interpretation
1.1 The following definitions and rules of interpretation apply in our standard terms:
“Contract” is the contract between the Supplier and the Customer for the sale and purchase of the Goods and/or Services in accordance with these conditions.
“Demonstration Equipment” is equipment which belongs to the Supplier that is loaned out to the Customer for demonstration purposes.
“Disposal” is the disposal of hazardous waste including recycling or reusing to the best of the Customer’s ability.
“Fixed Rate Repair Scheme” is a fixed scheme used by the Supplier, who will do single fault repairs on the Customer’s faulty goods at a fixed price.
“Force Majeure Event” as described in clause 19.
“Goods” are the goods which are sold by the Supplier to the Customer.
“Price List” is a list of goods provided by the Supplier that contains the pricing of products and/or Services.
“Services” the services that are supplied by the Supplier to the Customer as set out in the Specification or Price List.
“Specification” is specifications for the goods and/or services including any related plans and drawings, that is agreed (in writing) by the customer and supplier.
“Customer” is the original purchaser of the product and/or services from the Supplier.
“Supplier” is A & D INSTRUMENTS LIMITED, which is registered in England and Wales as company number 02609110.
“Terms and Conditions” are the general terms and conditions set out in this document.
2. The Contractual Basis
2.1 These conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The order by the Customer constitutes an offer by the Customer (“Order”) to purchase the Goods in accordance with these Terms and Conditions.
2.3 The Customer is responsible for ensuring that the terms of the Order and any applicable Specification (which has been submitted by the Customer and agreed by the Supplier), is complete and accurate.
2.4 The Customer’s Order shall only be deemed to be accepted when the Supplier confirms the Order by issuing a written acceptance of the Order, at which point and which date, the Contract shall come into effect.
2.5 Any samples or drawings by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues are produced to give an approximate idea of the Goods referred to in them. They shall not form part of the Contract, nor have any contractual force.
3. Goods
3.1 The Goods shall be described in the Supplier’s Price List or other sales literature. Unless goods are described via a Specification prepared by the Customer, and this is agreed with the Supplier
3.2 Where the Goods are to be manufactured in accordance with a Specification, the Customer shall always be responsible for the Specification’s accuracy and completeness. The supplier will face no liability for defects that result from the Specification as a result and the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier has the right to amend the Specification if required by statutory or regulatory requirements which are applicable, and the Supplier shall notify the Customer in any such event.
4. Supply of Services
4.1 The Supplier will supply Services to the Customer in accordance with the contractual agreement in all material respects. As per clause 3.1, Services will also be described under the Price List.
4.2 The Supplier shall use all reasonable endeavours to meet any performance dates that are specified in the contract, but any such dates shall be estimates only and time shall not be of the essence for performance of these services.
4.3 The Supplier reserves the right to amend the Specification of Services if necessary to comply with all regulatory requirements and applicable laws, or if the amendment will not materially affect the nature or quality of the Services. The Supplier will notify the Customer in any such event.
4.4 The Supplier can use subcontractors to perform Services for the Customer. In such event, subcontractors adhere to these Terms and Conditions.
4.5 The Supplier shall provide services to the Customer using reasonable care and skill.
5.Retention of Title
5.1 All goods supplied under this agreement are supplied on a retention of title basis. Ownership of the goods shall pass to the Customer as and when all payment owed by the Customer to the Supplier has been paid in full.
6. Delivery
6.1 Delivery of goods will be under the 2020 Incoterm, DAP unless otherwise agreed in writing.
6.2 Delivery times and dates shall not be of essence in the Contract.
6.3 Unless agreed in writing to the contrary, any dates quoted for delivery are approximate only.
6.4 Delivery shall be to the name and address in the Order form, unless the Customer otherwise has confirmed in writing, and this has been agreed by the Supplier. The Supplier will not be liable for any delays in delivery that result from the Customer’s failure to supply correct information.
6.5 The Supplier is entitled to resell the Goods if the Customer fails to take delivery of/take collection of the Goods.
6.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment constitutes a separate contract and any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.7 If the Customer fails to take delivery of the goods, the Supplier can charge a reasonable sum to the Customer for storing the Goods and claim damages.
7. Risk
7.1 Upon delivery of the goods, risk shall pass to the Customer.
7.2 As per clause 5 (Retention of Title), title to the goods shall not pass to the Customer until the Supplier receives payment on full for the goods.
7.3 The Customer bears the risk of storing the Goods, and until the title to the Goods has passed to the Customer, the Customer shall:
a) store the Goods separately from all other goods, which the Customer is holding, to make them readily identifiable as the Supplier’s property;
b) not remove, deface, or obscure any identifying mark or packaging on or relating to the Goods;
c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
d) notify the Supplier immediately if it becomes subject to any of the events listed in b) – d).
8.1 The Supplier issues warranties to the Customer for goods detailed in the Price List that is issued with the products and no other liability shall apply or purport to govern the product in writing.
8.2 Any warranty liability shall not be valid until the full payment of the products has been received by the Supplier.
8.3 The Customer is liable for the costs of returning the faulty unit to the Supplier’s UK Office as instructed by the Supplier’s Service Department.
8.4 The Supplier will inspect the Goods to determine if there is a valid warranty claim. If there is, the Supplier will replace or repair the unit and will cover the shipping cost back to the Customer.
8.5 In the event the fault is not covered by the warranty, the Supplier will not be liable for the Customer’s return and freight costs and any inspection/quotation fee will be charged at the Supplier’s discretion.
8.6 For the Supplier to accept the goods, the Customer must:
8.6.1 mark on the outside of the package, the Returns Number (SER Number), and
8.6.2 complete the Decontamination Certificate and attach and enclose this in an envelope, or email a completed copy electronically, and
8.6.3 return all parts of the Goods, and
8.6.4 send the Goods to the Supplier’s UK Address for inspection
8.7 All requirements must be completed, and failure to comply with any of these requirements will make the Customer’s repair warranty void.
8.8 In the case that a product does not work when delivered, the Supplier will arrange collection of the faulty Goods free of charge.
9. Returns of Goods
9.1 In the event that the Customer returns Goods supplied by the Supplier, acceptance of the returned Goods shall not be made by the Supplier until the Supplier has inspected and accepted such Goods in writing.
9.2 If a Customer prior or during dispatch requests cancellation of an Order via written notice, its liability will be as such to the Supplier that they pay the Supplier all costs reasonably incurred by the Supplier in fulfilling the Order up until the date of receipt up until the notice of cancellation.
9.3 The Supplier may at their sole discretion offer to repack the Goods if the outer packaging is damaged, at an additional charge to the Customer.
9.4 The Supplier will make a 20% Restocking Charge, or a minimum charge of £250 whichever is the greater.
9.5 The Customer is responsible for arranging and paying all the costs in return to the Company’s premises.
9.6 The Goods are received at the Supplier’s premises in an unopened condition and the Goods are in a resaleable condition.
10. Pricing (Goods)
10.1 Prices for our Goods are supplied at the price given in the Company’s currently published Price List; these prices are subject to change.
10.2 All prices of Goods are exclusive of VAT, which will be charged at applicable rates at the time of invoice.
10.3 The Supplier reserves the right to make a minimum charge on all Orders on our weighing and medical Price List, where the value is below a certain amount. The price of the minimum charge is on our Price List for weighing and medical products.
11. Terms of Payment (Goods)
11.1 Payment to the Supplier for Goods will occur following the date of the invoice, the Customer has within 30 days to pay the invoice.
11.2 The Supplier has the right to terminate the Contract if the Customer fails to pay on time.
11.3 Payment by instalment must be agreed upon between the parties in writing.
11.4 Payment for the delivery of goods in instalments will be invoiced in instalments that is relative to the amount of Goods purchased and delivered in that instalment.
11.5 Payment of the installed goods will be enforced following the date of the installed invoice.
11.6 If payment is not made on the due date, the Customer will be liable for interest on the amount outstanding. The Supplier can exercise its statutory right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998, and will claim in respect of any amounts outstanding 1 day past the date of payment, daily interest at the rate of 8% over the then LIBOR rate applicable.
11.7 In the event of non or late payment, the Supplier reserves the right to delay or cancel any outstanding Orders from the Customer until payment is received, and the Supplier may withdraw or vary the payment terms for such Orders.
11.8 Where the Goods are supplied on a Credit Account basis, payment is due on the agreed terms from the date of leaving the Company’s premises or informing the Customer of the availability of collection of such Goods and not from the receipt by the Customer at the premises.
11.9 The Supplier has the right to withhold credit from the Customer in the event of payment failures.
12. Terms of Payment (Services)
12.1 The charges for Services shall be calculated on a time and materials basis:
a) Following agreement, the Supplier will provide labour for the Services on an ‘as and when required basis’ at a per day rate.
b) On-site Services will be charged at a rate per day for a day or part thereof minimum rate is 0.5 days. A Company support engineer will be available on site of the Customer between 8am – 5pm less travel and lunch time.
c) The Supplier is entitled to charge a fee rate on a pro rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours. The price of the fees shall vary.
d) The Supplier shall be entitled to charge the Customer for any expenses incurred by the individuals whom the Supplier engages in connection with the Services including – travelling expenses, hotel costs, subsistence and any associated expenses for the cost of Services provided by third parties and required by the Supplier for the performance of the Services and for the cost of any materials.
e) Travel and living costs for on-site visits will be charged extra based on real costs plus 15% handling fees.
12.2 Clause 10.2 shall also apply to Services also, where all prices of services are exclusive from VAT.
13. Customer’s Obligations (Services)
13.1 The Customer has responsibility for:
a) ensuring that the terms of the Order and information provided regarding the service Specification is complete and accurate;
b) co-operating with the Supplier in all matters relating to the Services;
c) providing the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises and other facilities which are reasonably required for the Supplier to provide Services;
d) providing the Supplier with such information and materials that the Supplier may reasonably require to supply the Services, and ensure that such information is complete and accurate;
e) preparing all necessary premises for the supply of the Services;
f) obtaining and maintaining all necessary licences, permissions and consents before the start of the Services;
g) complying with all applicable laws, including health and safety laws and regulations;
h) keeping all property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk and keep such property in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
i) providing anyone employed or contracted with the Supplier, who are performing any Services with the appropriate equipment and gear to carry out Services; and
j) complying with any additional obligations as set out in the Service Specification.
13.2 If any act or omission by the Customer leads to the Supplier failing to perform any relevant obligation:
a) without limiting or affecting any other right or remedies available, the Supplier can suspend performance of the Services until the Customer resolves their defaults and fulfils any outstanding obligations;
b) the Supplier can rely on the Customer default to relieve it from the performance of any of its obligations in each case, to the extent that the Customer default prevents or delays the Supplier’s performance of any of its obligation;
c) the Supplier accepts no liability for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 13.2; and
d) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer default.
14. Repairs
14.1 The Supplier carries out most repairs using the Fixed Rate Repair Scheme.
14.2 In the case where a quotation for repairs is issued, a small charge to the Customer will be issued.
14.3 Before products are returned to the Supplier, the following should be carried out by the Customer:
14.3.1 the Customer must contact the customer services of the Supplier for an RGA number;
14.3.2 the Customer can raise a PO, but the Supplier also accepts an email as a form of Order;
14.3.3 complete and return the instrument decontamination form, to ensure that the Supplier can ensure safety of its staff; and
14.3.4 package the product labelling the carton with the RGA number and send it to our UK premises: A&D Instruments Limited, 24 Blacklands Way, Abingdon Business Park, Abingdon, OXON, OX14 1DY.
14.4 The Fixed Rate Repair Scheme applies only to products capable of repair and only to a single fault condition. Multiple faults to products, if unrelated, will not be covered by the scheme.
14.5 Repair reports for fault finding and faulty analysis is available via requesting for a small charge.
14.6 Re-verification of chargeable repairs will incur an additional charge (weighting products only).
14.7 To ensure the safety of the Supplier’s customers, Portable Appliance Tests (PAT) will be carried out on all repairs, where appropriate. There may be a charge for this.
14.8 Repairs that are awaiting acceptance of the Supplier’s quotation for more than 30 days may be disposed of. Charges may be made to cover the cost of such Disposal.
14.9 Products returned for repair without original packing shall incur a packing charge to ensure that the product is not damaged on its return to the Customer.
15. Demonstration Equipment
15.1 The Customer must issue a written form for Demonstration Equipment accepting all the conditions for the equipment.
15.2. The Customer shall:
15.2.1 be responsible for the cost of all delivery costs from the Supplier’s premises and the return thereof;
15.2.2 be responsible at their cost to keep and maintain such equipment in a proper safe and serviceable condition; and
15.2.3 pay to the Supplier on the return of the Goods, any costs of repair to such Goods.
15.3 Unless otherwise agreed in writing, the Supplier shall charge the Customer for such Demonstration Equipment not returned to the Company at 10% of the product’s list price being charged each week up to 2 weeks, following which, if the Goods are still not returned, an invoice will be raised at a standard list price.
16. Liability
16.1 The limits and exclusions in this clause are reflective of the insurance cover the Supplier has arranged, and the Customer is responsible for making its own arrangements for the insurance of any excess liability
16.2 Nothing in the Contract limits any liability for:
a) death or personal injury caused by negligence;
b) fraud or fraudulent misrepresentation;
c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
d) defective products under the Consumer Protection Act 1987 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
e) any liability that legally cannot be limited.
16.3 The Supplier accepts no liability to the Customer for loss of profits, loss of sales or business, loss of agreements or contracts, loss of savings, loss of or damage to goodwill, loss of software, data or information and any indirect or consequential losses.
16.4 Claims against the Supplier must be initiated by written notice to the Supplier within 1 month. Failure to provide such notice to a potential claim, will lead to the claim being void.
16.5Subject to clause 16.2, the Supplier’s total liability to the Customer under this Contract shall not exceed £2,000,000.
16.6 This clause 16 shall survive termination of the Contract.
17. Intellectual Property Rights
17.1 All Intellectual Property Rights, which are arising out of, or in connection with the Goods and Services, are owned by the Supplier.
17.2 The Customer grants the Supplier a fully paid up, non-exclusive, royalty-free non transferrable licence to use Intellectual Property Rights for the purpose of strictly the Customer’s internal business purposes.
17.3 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of a licence of Intellectual Property rights during the time of the Contract.
17.4 Customer has no right to grant any sublicenses or assign the transfer of rights, which have been granted in clause 17.3.
18. Set Off
18.1 The Customer cannot withhold payment of any sums after they are due by reason of any right of set off or counter claim which the Customer may have or alleged or for any reason whatsoever.
19. Force Majeure Event
19.1 Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for 60 days, the party not affected may terminate the Contract by giving not less than 60 days’ written notice to the affected party.
20. Third Party Harassment and Abuse
20.1 The Company has a zero-tolerance approach to any incident involving harassment or abuse against its employees. Any form of abuse is unacceptable and we are committed to taking the strongest possible action to tackle any incidents and protect employees. In line with the Employee Handbook, the Company shall take reasonable steps to ensure that the working environment for employees is one which all employees are treated with respect and any abuse or harassment by third parties is not tolerated. ‘Third Party’ means someone that workers will interact with as part of their role, but who are not employed by the Company.
20A. Termination
20A.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than three months’ written notice.
20A.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
20A.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
20A.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in Clause 20A.2(b) to Clause 20A.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
20B. Consequences of Termination
20B.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods and Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
20B.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
20B.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
21. General
21.1 These Terms and Conditions constitute the entire agreement between the parties, and they supersede any previous agreement or understanding and may not be varied, except in writing between the parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law and whether quoted on the Customer Order or other Customer communication.
21.2 These Terms and Conditions shall apply until varied or revoked by the Company and no other terms whatsoever shall apply. Variation to anything in this agreement shall arise by a written agreement by both parties.
21.3 These Terms and Conditions come into effect on the date shown on the Order and supersede all previous versions from the date shown below.
21.4 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected.
21.5 English law shall apply to these Terms and Conditions and the parties agree to submit to the exclusive jurisdiction of the English Courts.
21.6 In the event that a Customer is a dealer, dealer agreements will accompany these Terms and Conditions and shall form an integral part of these Terms and Conditions.
21.7 By accepting these Terms and Conditions, the Customer accepts responsibility for all the costs that are associated with the collection and the treatment of products that reach the end of their life which are supplied by the Supplier. The Customer must safely dispose of WEEE (Waste Electrical and Electronic Equipment) to the best of their ability and in line with appropriate legislation, as per the WEEE Regulations.
21.8 If the Customer sells or transfers the equipment to a third party, the duty for Disposal passes to that third party.
21.9 Each party undertakes that it shall not at any time, and for a period of three years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by Clause 21.10.
21.10 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clauses 21.9 – 21.11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
21.11 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
21.12 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address; or
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am (London, UK time zone) on the second working day after posting.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
21.13 Waiver.
(a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
21.14 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
21.15 Third party rights.
(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.